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DRAFT: Megan Rae Blakely

Pattern Recognition:

Governmental Regulation of Tartan and Commodification of Culture

Megan Rae Blakely, J.D., LL.M.

Postgraduate Researcher, CREATe, University of Glasgow

Working Paper Draft

Contents

I. Introduction ..................................................................................................................... 1

II. History of Tartan and Cultural Influence ........................................................................ 3

III. Community Regulation ................................................................................................... 7

IV. Effects of Regulation and Propertization – Exploratory Recommendations ................ 17

V. Alternative Courses for Cultural Preservation .............................................................. 18

VI. Conclusion .................................................................................................................... 21

“…by all the information I could procure their only Crimes (are) Poverty and Tartan,

which too often Appear coupled.”1

-1 August 1747, Jailer Hugh Forbes.

I. Introduction

Cultural heritage provides a unique identity with myriad enriching benefits to regions

and peoples. In the face of increased cultural homogenization in part due to globalization,

accelerated through technological development, cultural heritage preservation is increasingly

an international and domestic concern. Cultural heritage is frequently divided into two

categories: tangible and intangible. Tangible cultural heritage, such as art and landmarks, is

easier to define and thus easier to categorize and protect under existing legal systems or

agencies. While literature generally acknowledges intangible cultural heritage (“ICH”),

acknowledgement is often the extent of ICH coverage due to definitional vagaries as well as a

1 History, THE SCOTTISH REGISTER OF TARTANS, http://www.tartanregister.gov.uk/history.aspx (last visited 14

Mar. 2014); 1 August 1747 Hugh Forbes, Musselborough prisoners, NRS reference: RH15/38/105.

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great diversity in regional ICH.2 ICH can consist of traditional knowledge, songs,

craftsmanship, dance, and other practices skills, as well as the associated cultural artifacts and

spaces.3 These are simply illustrative of the concept; global living heritages passed

generationally must be allowed to organically evolve, often defying the process of

identification so desirable in the realm of legal protections. Pinning down these expressions

presents dangers of ossification and loss of meaning as a living practice for the relevant

communities, leaving a historical piece of recorded data without present cultural meaning and

counteracting the purpose of protection efforts entirely. Additionally, a further consequence

of the difficulties in precisely defining ICH is the challenge of measuring value, and thus

legislative bodies or non-governmental organisations seeking funding or attempting to design

effective ICH protection programmes can face abundant hurtles.

One piece of ICH which has come to define Scotland is the tartan.4 The tartan sett, or

pattern, instantly creates association with Scottish culture, history, and genealogy. Tartan

combines the intangible design element with the frequent manifestation into a tangible article,

allowing for an easier transition into a salable form. Thus this type of ICH is more frequently

used in cultural branding and marketing as no additional derivative product is needed for

commodification. Interested community groups have historically documented and registered

tartan designs for reference and posterity, especially following the widespread clan adoptions

2 The use of “heritage” rather than “property” is an intentional decision within the field. Even though

intellectual property and cultural heritage can overlap, a number of distinctions call for separate terminology.

For instance, intellectual property (or in this case, cultural property) indicates monopolistic exclusionary rights

which may be commercially exploited by a rightsholder or be parsed into rights that may be lost through legal

mechanisms. Particularly for cultural property, the state maintained the property for its own economic benefit.

Cultural heritage is more representative of the concept of preserving and protecting expressions and traditions

passed through generations, as well as ensuring potential public access. See Prott, L. & O’Keefe, P., ‘Cultural

Heritage’ or’ Cultural Property’?, 1 INT’L J. OF CULT. PROP. 307-320 (1992) available

at http://dx.doi.org/10.1017/S094073919200033X. 3 Convention for the Safeguarding of Intangible Cultural Heritage, UNESCO (2003).

4 “For the purposes of the Register, the definition of 'tartan' is that contained within the Scottish Register of

Tartans Act 2008 Section 2: 'A tartan is a design which is capable of being woven consisting of two or more

alternating coloured stripes which combine vertically and horizontally to form a repeated chequered pattern.”

Guidance, THE SCOTTISH REGISTER OF TARTANS, http://www.tartanregister.gov.uk/Guidance.aspx (last visited

14 Mar. 2014).

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in the early 1800s. However, in 2009, the Scottish government passed the Tartans Bill,

establishing a records division within the National Records of Scotland, to register, preserve,

and maintain tartan designs for a fee. The registration does not purport to establish new or

affect existing intellectual property rights in the designs; most tartan designs are ineligible for

copyright protections already due to unknown authorship or expiration.

This article seeks to explore the effects of government intervention on community

ICH regulation and of cultural branding on economic and social cultural value. Part II will

explore the historical development and influence of tartan; Part III will examine the structure

and effectiveness of community tartan regulation while Part IV explores the nature and

impact of governmental intervention in community-regulated ICH; and Part V will consider

alternative methods for preserving ICH.

II. History of Tartan and Cultural Influence

While tartan is now inexorably linked with Scotland, early Celtic use dates back to

around the 6th

to 8th

century.5 Until 19

th century, none of the designs were heraldic, or

associated with clans, and were associated only with regions throughout early Celtic

migration, and colour variances were due to the availability of dyes and personal preferences.

The National Records of Scotland (“NRS”) holds the first known written mention of a

Scottish Highland tartan. Dated from 1538, Exchequer records for King James V list

chequered pattern tights as ‘Heland tartane.’6 Records are sparse following this first mention

until the 1700s, and the Dean Orphanage and Cauvin's Trust of Edinburgh maintain one of

the earliest tartan production and pattern records.7 The spinning book holds records of wool

5 History, THE SCOTTISH REGISTER OF TARTANS, supra note 1.

6 Records of the Exchequer, 1538, NRS reference: E21/34 available at

http://www.tartanregister.gov.uk/history.aspx (last visited 14 Mar. 2014). 7 Spinning Book of the Orphan Hospital Manufactory and Paul's Work, Edinburgh (part of the records of the

Dean Orphanage and Cauvin's Trust), NRS reference: GD417/262

http://www.tartanregister.gov.uk/history.aspx (last visited 14 Mar. 2014).

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spun and distributed by the Orphan Hospital Manufactory and Paul's Work from 1734 to

1737.8 The spinning book also contains a shorter records of tartans supplied from 1751 to

1752.9

The Dress Act of 1746 to attempted to control Highland clans by banning tartan as

well as Gaelic culture and language.10

The Dress Act was repealed in 1786, and by that

point, tartan had already become integrated into mainstream Scottish culture, including the

Lowlands. For example, Edinburgh military uniforms displayed tartan patterns, and Bonnie

Prince Charlie donned tartan during a visit in 1746.11

The tradition of royalty and tartan

continued, and King George V also wore tartan on a Scottish excursion in 1822.12

Despite a historically verified royal and public use, Highland tartan was too often

associated with crime or poverty for centuries.13

For instance, the NRS holds a letter from a

Scottish jailer, Hugh Forbes, stating his prisoners have committed only the crimes of poverty

and tartan. 14

Around the turn of the century, the image and association of tartan deliberately

shifted through royal and Lowland use as well as the Victorian-era romanticisation of the

Highlands and invention of clan association.

As tartan became fashionable and a national symbol of Scotland, national branding,

marketing, and clan identifications normalized. The first registry to request clan associations

was the Highland Society of London in 1778, which sent requests to clan leaders to "be

respectfully solicited to furnish the Society with as Much of the Tartan of his Lordship's Clan

8 Id.

9 Id.

10 Tartan and the Dress Act of 1746,SCOTTISH TARTANS AUTH.,

http://www.tartansauthority.com/resources/archives/the-archives/scobie/tartan-and-the-dress-act-of-1746/ (last

visited 14 Mar. 2014). 11

GD128/Box 38/Bundle 4, NRS reference: RH19/36/2. 12

NRS reference: GD157/2548/3. 13

1 August 1747, Hugh Forbes, supra note 1. 14

“On 1 August 1747, Hugh Forbes wrote a letter concerning the plight of three shearers, imprisoned by the

magistrates of Musselburgh: 'by all the information I could procure their only Crimes (are) Poverty and Tartan,

which too often Appear coupled'. He urges his correspondent not to allow the shearers to die of hunger now that

their 3d (pence) a day allowance has been withdrawn.” Id.

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as will serve to Show the Pattern and to Authenticate the Same by Attaching Thereunto a

Card bearing the Impression of his Lordship's Arms."15

However, many of the clan leaders

were unaware of what their official tartan might be but were pleased with the official

recognition. For instance, Baron MacDonald responded thusly: "Being really ignorant of

what is exactly The Macdonald Tartan, I request you will have the goodness to exert every

Means in your power to Obtain a perfectly genuine Pattern, Such as Will Warrant me in

Authenticating it with my Arms."16

The tartan moved so far from its warring Highland clan

and criminal associations that it was incorporated into advertising and tourism promotion in

the 19th

century, with animated traditional Highland dress even found on postcards as early as

1920.17

Even the present day modern, ancient, and muted colour configurations of official

tartans are simply due to the intensity of the dyes available, with the older dyes offering a less

intense palate due to transport over long distances and are meant to mimic naturally faded

fabrics as chemical dyes were not available. There is no distinct clan identification difference

between new and old; this is a clear example of branding and classification formed by

modern registries.

Taking into account the ingrained historical and cultural influence of tartan, the

Scottish government considers it to be “one of Scotland's most iconic and valuable assets.”18

An analysis commissioned by the Scottish Parliament, executed by ECOTEC, concluded that

“the tartan industry is a significant contributor to the overall Scottish economy; and larger in

economic terms than suggested by previous industry estimates.”19

Economic benefit is

frequently used as a benchmark of cultural value, including when justifying cultural

regulation, promotion, or protection; scholars or policymakers may calculate a numeric value

15

Urquhart, B., IDENTIFYING TARTANS 18 (1994). 16

Id. 17

NRS reference: GD1/1295/5. 18

National Tartan Register to be Set Up, THE SCOTTISH GOV’T, 09 Jun. 2007,

http://www.scotland.gov.uk/News/Releases/2007/07/09113114. 19

Id.

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through measurement of financial profitability, participant attendance, or production

volume.20

While this economic measurement approach provides a tangible, concrete value, this

approach poses a serious danger of oversimplifying the social impact of cultural value to the

point of reductionism. This reductionist approach to assessing value of intangible cultural

heritage may allow for more successful lobbying for preservation, but economic benefit does

not encompass the true present cultural value of ICH. Basing cultural value on economic

return skews value heavily towards Western structures of ICH regulation and production.

Further, if policymakers and stewards of ICH too frequently lean on economic benefits of

ICH, ICH with less apparent or indirect economic benefits may dwindle by means of

recognition and preservation exclusion.

“Tartan's importance to Scotland cannot be overestimated. It is deeply embedded in

Scottish culture and is an internationally recognised symbol of Scotland.”21

This symbol

serves to maintain identity and local solidarity and also directs positive attention towards

Scotland through heritage and genealogical tourism as well as private and public scholarship.

This attention to maintaining and preserving Scottish tartans crosses over to preserving and

practising other Scottish ICH, such as Highland dance, song, attractions, and historical

contributions. The tartan’s powerful Scottish identity reaches globally, serving as a symbol

of Scottish pride and nationalism at festivals such as New York Tartan Week and an official

Tartan Day in Arkansas.22

In this way, using tartan to brand Scottish culture demonstrates a

softer, less political national branding, still seeking to emphasize positive, shared features of

20

Contingent valuation is an alternative economic measurement method used for calculating nonmarket values

and may be a more useful economic tool in the cultural value context. 21

National Tartan Register to be Set Up, supra note 18. 22

Arkansas Tartan, THE ENCYCLOPEDIA OF AK HIST. & CULT.,

http://www.encyclopediaofarkansas.net/encyclopedia/entry-detail.aspx?entryID=2342 (last visited 14 Mar.

2014).

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the community through an intangible piece of property which can be displayed in a tangible

fashion.

Despite all efforts, placing a calculable value on cultural diversity may not be

possible, and should this be fact even for the present time, a lack of precise value should not

hinder or diminish protection of cultural diversity, especially considering the soft or indirect

impacts of preserving ICH. Another area facing similar measurement problems is

biodiversity and environmental protection. Preservation is based on the ‘precautionary

principle,’ a theory that mandates protection in the event of suspected harm to the

environment or public good, even in the absence of scientific consensus of such harm.23

Scientists still make discoveries about intricate interdependencies and new uses and functions

for animals and plants previously thought ‘useless’ or ‘unimportant.’ These unforeseen or

clandestine functions of existing and evolving diversity should provide sufficient rationale for

biodiversity protection as well as ICH preservation whether the true value of the ICH is

known, yet unknown, or cannot be calculated at all.

III. Community Regulation

Until recent years, tartan producers and community-led organisations governed tartan

documentation and regulation to the exclusion of any government intervention.24

The

Scottish Tartans World Register (“STWR”) catalogued tartans centrally in a registry that

contained nearly 3,000 designs. The STWR would make note of a design for free and charge

23

“Where there are threats of serious or irreversible environmental damage, lack of full scientific certainty shall

not be used as a reason for postponing cost effective measures to prevent environmental degradation.” RIO

DECLARATION ON ENVIRONMENT AND DEVELOPMENT UNCED (1992), available at

http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=116. 24

Intellectual property law protections regarding rights to relevant aspects of tartan as intellectual property still

apply. “Inclusion of a tartan in the Register indicates that the tartan and its name are unique to the Register and

meet the registration criteria of the Scottish Register of Tartans Act 2008. No other rights are conferred. For

further information on UK design right or to register your design, please visit the UK Intellectual Property

Office at www.ipo.gov.uk.” Guidance, THE SCOTTISH REGISTER OF TARTANS, supra note 4.

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£50 to officially register a design.25

While a fairly comprehensive registry, the STWR did

not hold a monopoly on records and registration. The Scottish Tartans Society (“STS”)

operated as another independent registry for tartan design.26

Although now defunct as a

registry, the STS remains as a web resource.27

In addition to documenting tartans and other

Scottish history, the STS also opened a tartan museum in the United States in order to bridge

interest from across the pond. The museum still stands in the state of North Carolina, which

holds a large population of Scottish descendants.28

Thus the activities of community-led

registries extended beyond design documentation and registration to acting as cultural

liaisons and networking hubs.

In 2008, Scottish lawmakers moved to create an official government register of

tartans, modeled largely after the existing community-based registers, with aims to promote

the Scottish tie to international tartans and fuel the domestic economy. During legislative

debate, representatives presented arguments which supported official register with legal

authority. In addition to improving tartan image and giving confidence to users, lawmakers

cited benefits to tourism and related activities, such as genealogical tourism. 29

Further,

government registration tends to offer commercial neutrality with no exposure to private

commercial risk. 30

However, much of the basis for co-opting this organizational system can

be attributed to a cultural branding which would create indirect benefits for Scotland through

assuring continued association with the tartan.

25

Recording Tartan, SCOTTISH TARTANS WORLD REGISTER, (site archived, www.scottish-tartans-world-

register.com, retrieved Jul. 2008). 26

FAQ, SCOTTISH TARTANS MUSEUM, http://www.scottishtartans.org/faq.html (last visited 14 Mar. 2014). 27

http://www.tartans.scotland.net/ 28

FAQ, SCOTTISH TARTANS MUSEUM, supra note 26. 29

Herbert, S., Scottish Parliament Information Centre (SPICe) Briefing (24 Apr. 2008) 7

http://www.scottish.parliament.uk/SPICeResources/Research%20briefings%20and%20fact%20sheets/SB08-

22.pdf, citing Burnside, R., Scottish Register of Tartans Bill. SPICe Briefing No 06/103 (2006) Edinburgh:

Scottish Parliament. 30

Id.

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Strong arguments against establishing a government-run tartan register were also put

forth, many of which pointed to the lack of a direct return as purported by supports. The

most direct query asks: “Is there any damage being done to the Scottish economy by

‘unregulated tartans’? If the answer is ‘No,’ then Parliament has no business debating this at

public expense.”31

Of particular relevance to the intellectual property system is the critique

that the tartan register is “a toothless tiger,” conveying no additional legal rights and

“reinvents the wheel,” as community registers were widely accepted and respected as

effective and reliable. 32

The government register further depends on existing register

cooperation (which did occur) but nonetheless can create confusion among the existing

registers. On the side of public administration, this type of redundant register may open

floodgates for similarly burdensome administrative public bodies, stressing financial and

manpower resources.33

Finally, a government-run register might make registered tartans

more available to the public but does not guarantee consistency or reliability, as such

initiatives are subject to administrative changes and budget constraints. 34

On 9 October 2008, the Scottish Register of Tartans Bill (“the Tartans Bill”) was

passed and received royal assent on 8 November 2008.35

The Tartans Bill took effect on

launched on 5 February 2009. The new government-run registry received official support

from these community-run registries, and incorporated their existing databases into the NRS

registry.36

Further, many of the structural and procedural elements of tartan registration were

adopted from the existing community regulators.

31

Herbert, supra note 29 at 13. 32

Id. 33

Id. at 7. 34

Id. at 13. 35

Id. 36

Search the Register, SCOTTISH REGISTER OF TARTANS, http://www.tartanregister.gov.uk/search.aspx (last

visited 14 Mar. 2014).

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While the Tartans Bill states its purpose as promoting and preserving cultural

heritage, the cost to register is £20 higher than the STA registration, at £70. “Total costs

could reach £75,000 a year for the project, which MSPs were told could run at a loss.”37

Further, an independent briefing concluded that a “full recovery of costs is not possible.”38

Enterprise Minister Jim Mather released the following statement on the Tartans Bill:

"I hope the work on a register will continue to be backed by industry and political consensus.

And I hope the register will become a focus for authenticating all the superb varieties of

tartan we design and produce [emphasis added].”39

While Mather states that part of the goal

of passing tartan legislation includes authentication of tartan designed and produced in

Scotland, the Tartans Bill contains no requirement for association in any way with Scotland.

As domestic legislature has limited international powers to restrict international design and

production of intellectual property, accomplishing the benefit of Scotland-centred design and

production of tartan without creating an internationally recognized right, such as a

certification mark or protected designation of origin.40

Further, many tartans may be

registered with no Scottish company holding a licence to sell or produce a copyrighted tartan

held by a commercial entity which is actively economically exploiting the tartan. Notably,

lawmakers did bring forth that the official association with Scotland will maintain the link

and provide indirect benefits.41

To more fully compare the motivation and aims of the Tartans Bill with the stated

aims, an examination of the text of the Bill will indicate the breadth of influence and reveals

the indirect benefits to be primary and the direct purported benefits correlated only if

37

Holyrood Supports the Tartan Register, BBC NEWS (19 Jun. 2008)

http://news.bbc.co.uk/1/hi/scotland/7461981.stm. 38

Herbert, supra note 29 at 14. 39

National Tartan Register to be Set Up, THE SCOTTISH GOV’T, supra note 18. 40

See generally, Types of Protection, INT’L TM ASSOC.

http://www.inta.org/TrademarkBasics/FactSheets/Pages/GeographicalIndicationsFactSheet.aspx (last visited 14

Mar. 2014). 41

Herbert, supra note 29 at 14.

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occurring at all. Only the following criteria must be met to officially register a tartan with the

NRS:

- that the tartan meets the definition contained in the Act and is sufficiently

different to all other tartans already recorded in the Register

- that the name of the tartan is unique, acceptable and suitably authorised

- that the application fee of £70 is paid.” 42

In addition to thread count and colour information, registrees must provide “a description of

the tartan including your reasons for designing it and explaining your choice of colours; the

name of the tartan and evidence of your association with that name.”43

If the tartan includes

a proper name, the registree must include disclaimer that anyone sharing the proper name

may wear the tartan design. However, the registration affects no intellectual property rights

and offers no enforcement mechanism other than removal from the registry.44

So while a

disclaimer must be made, a registree could not utilize the Tartans Bill to exclude others from

wearing a tartan with a proper name identifier.

The primary criteria for acceptance onto the register centres around the design of the

tartan and whether is it ‘sufficiently different’ from designs currently on the register.

“Sufficiently different means that it must be possible to clearly differentiate

your tartan from all the other thousands of tartans already recorded,

distinguishable by eye at a distance of approximately 2m (6ft). In practice this

means that

i. the geometry of a design must be sufficiently different, ie. the blocks

of solid colours and the mixtures used in a design must be arranged in

a different pattern to all other designs already recorded.

ii. a new tartan will use different colours in substantially different

proportions and ordered differently to all tartans already recorded.

Changing the shades of the colours used is insufficient to differentiate

a new design since tartans are traditionally recorded in the base colours

42

Guidance, THE SCOTTISH REGISTER OF TARTANS, supra note 4. 43

Id. 44

“Some tartans are for the use of certain groups of people only, e.g., a clan or family tartan, a personal or a

corporate tartan. You may record here any restrictions you wish to impose on the wearing, the use and re-use or

production of your tartan, however the Keeper is not responsible for enforcing any such restrictions and has no

authority to do so. For further information on designs or to register a design in the UK, please visit the UK

Intellectual Property Office at www.ipo.gov.uk.” Id.

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of red, yellow, green, blue, brown, grey, black and white. Any shade of

blue will still be recorded as blue, likewise green etc.

iii. over-check(s) or additional stripe(s) in contrasting colour(s) can be

added to create a new tartan, providing the over-check or stripe is

clearly visible when woven.”45

The Tartans Bill additionally identifies qualities which will not be counted as sufficiently

different. For instance, increasing or decreasing the size of the sett will not create sufficient

difference nor will varying a shade of the colour; “Therefore, for example, light blue, navy

blue and purple are all considered to be blue and changing the shade from light to dark blue

will not change the basic pattern.”46

Certain tartan designs are eligible for protection already under international and

domestic intellectual property law, and equally important to establishing what the Tartans

Bill does do is establishing what it does not. The Tartans Bill does not affect any other

intellectual property rights available to a rightsholder or preclude others from using or

producing a design independently of other intellectual property rights. The majority of

countries around the globe are governed under the Berne Convention for the Protection of

Literary and Artistic Rights (“the Berne Convention”), an international treaty setting

minimum regulatory standards and national treatment provisions related to copyright.47

The

Berne Convention mandates protection of patterned designs, like a tartan, subject to no

formal registration, as long as the design meets other basic copyright requirements such as

authorship and duration.48

As the Berne Convention sets minimum standards, domestic

lawmakers may set enhanced protections as well, so additional or longer protection may be

offered for registrations. In the United Kingdom, tartans might be protected as registered

designs under the Copyright and Design Protection Act of 1988 (“the CDPA”) for fifteen

years or five years from the date of first sale or hire; this protection comes with the benefit of

45

Id. 46

Id. 47

The Berne Convention for the Protection of Literary and Artistic Works, 1161 U.N.T.S. 3, available at

http://www.wipo.int/clea/docs/en/wo/wo001en.htm. 48

Id.

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not having to prove a reasonable opportunity to copy, as with copyright protections.49

In

Scotland, intellectual property is further protected under Section C4 of Part II of Schedule 5

of the Scotland Act 1998.50

51

Under the CDPA, intellectual property rightsholders have the exclusive right to copy,

make, sell, create derivatives, and pursue infringers for the protected time period.52

However,

most tartan will be ineligible for any type of conventional intellectual property protection

unless it is newly created.53

Likely due to this lack of eligibility for intellectual property

protection, litigation surrounding use and misuse of tartan designs is sparse. Thus the

intellectual property system as it stands provides little recourse for individuals or clans with

cultural associations or ownership in a tartan design in the event of exploitation or

commercialisation. However, one recent case, Abraham Moon & Sons Ltd. v. Thornber &

Others, found infringement of the copyright in a new tartan design and in the ‘ticket stamp,’

the written instructions for expert weavers.54

Despite defendants’ cites to numerous cases

holding that instructions cannot be copyrighted, the judge was persuaded that the complexity

and information held in a ticket stamp communicated a visual image to expert weavers and

had ‘real visual significance’; thus it was a graphic work, protected by copyright.55

There has

yet to be any further case law on tartan, so it is uncertain whether this decision offers any

certainty for new designers as previous case law has discounted similar constructs as

uncopyrightable instructions.56

As existing IP protection seems insufficient to ubiquitously protect tartan, two

alternatives might be well suited: geographical indications or a type of sui generis protection

49

Part III, THE COPYRIGHT AND DESIGN PROTECTION ACT (1988). 50

Section C4, Part II, Schedule 5, THE SCOTLAND ACT (1998). 51

Do I Need to Register My Design?, INTELL. PROP. OFFICE, http://www.ipo.gov.uk/types/design/d-applying/d-

before/d-needreg.htm (last visited 14 Mar. 2014). 52

THE COPYRIGHT AND DESIGN PROTECTION ACT (1988). 53

Part I, Copyright and Designs Protection Act (1988). 54

[2012] EWPCC 37 (05 October 2012). 55

Id. 56

Id.

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through legislation. Both types of protection are already used around the globe to protect

regionally specific design and thereby the surrounding ICH. Interestingly, Scotland protects

another type of pattern and textile production, Harris Tweed, through special legislation and

trademark. The Harris Tweed Act of 1993 created the Harris Tweed Authority for the

following purpose: "To promote and maintain the authenticity, standard and reputation of

Harris Tweed; for preventing the sale as Harris Tweed of material which does not fall within

the definition..."57

The defines Harris Tweed as “a tweed which has been hand woven by the

islanders at their homes in the Outer Hebrides, finished in the islands of Harris, Lewis, North

Uist, Benbecula, South Uist and Barra and their several purtenances (The Outer Hebrides)

and made from pure virgin wool dyed and spun in the Outer Hebrides."58

Passing legislation

in accompaniment to a trademark is a unique solution but is highly customized. Harris

Tweed is essentially a localized commercial operation, with three mills and self-employed

resident weavers, which lent very well to legislative protection. With such a high commercial

demand for the tweed, trademarking the product and supporting the local industry with

legislation secured the residents livelihoods, maintained the association with the geographical

origin, and provided the economic means for islanders to continue the tradition.

Geographical indication (GI), or appellation of origin, is an IP protection which seems

to fit nicely into the stated goals of the Tartan Bill. GIs are indications of origin from a

region or locality and also indicate a geographically attributable quality or characteristic,

which may include the geographical name (as with Scotch whisky) or may simply have

acquired a strong association with the designated regions (as with Basmati rice).59

Many GIs

might appear to overlap with trademark rights; however, they are distinguishable as “

57

58

59

Nair, L. & Kumar, R., GEOGRAPHICAL INDICATIONS, LexisNexis, New Dehli 12 (2005).

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trademarks as a private monopoly right and geographical indications as a collective public

right,”60

This distinction makes a GI than a trademark more appropriate for ICH.

In order for tartan to be eligible for GI protection, several high hurtles would need to

be overcome. First, GI protection is primarily limited to food and wine in the UK and US,

and more frequently these countries use trademark law to protect origin designations, such as

Florida oranges.61

From a practical perspective, pushing for expanding GI protection at

WIPO may not be policy the UK wants to pursue, despite the rising implementation of

expansive GIs in the EU. Second, while the tartan register does delineate quality and

originality standards for registration, it is unclear whether consumers would associate a

higher quality tartan with Scottish production origin. Historical origin is distinct from

production origin, and if the purpose of a GI is to ensure quality and prevent consumer

deception as to origin, tartan may not garner such protection. Practically speaking, the

manufacture, design, and distribution is already geographically widespread and attempts to

reign in and claw back these elements to Scotland would likely prove futile. Third, based on

the goals stated for passing legislation, maintaining global association between Scotland and

tartan seems to be paramount. Foreign registrations are allowed and encouraged; the Tartan

Bill has no requirement for involving Scottish industry or even listing a Scottish connection

in the description. A voluntary official register thus serves as a positive reinforcement

measure rather than offering negative punitive consequences for not registering. By

preserving this association, more indirect benefits through tourism and branding may occur

rather than direct, local benefits through defending limited and highly monitored production,

as with the Harris Tweed Act.

Despite the apparently suitability of GIs for protecting ICH in general, the system is

not widely utilized across the globe. The Lisbon Agreement for the Protection of

60

Nair, L. & Kumar, R., GEOGRAPHICAL INDICATIONS, LexisNexis, New Dehli 6 (2005). 61

Dutfield, G. & Suthersanen, U., GLOBAL INT’L PROP. LAW, Cheltenham, UK 192 (2008).

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Appellations of Origin and their International Registration has limited signatories, and the

possible expansion and international harmonization of GIs has been contested by some WIPO

negotiation members.62

Nonetheless, developing countries with primarily agricultural or

geographically dependent quality measures, e.g., Antigua coffee or Darjeeling tea, rely upon

GIs for economic and associated traditional craftsmanship protection.63

While GIs are often

promoted as a ‘pro-development intellectual property right,’64

trademarks and GIs are

dangerous to use when protecting ICH and ICH-related goods as the protection is exposed to

the risk of ‘genericide.’65

Genericide occurs when the trademarked name becomes so widely

associated with the good that there is no longer a consumer identification function, such as

with aspirin or elevator.66

These terms were previously brand names which became the

overarching term for the product. Thus trademark may not be the best protection on its own

if, within a given market, there is a high risk of genericide. This may already be the case with

tartan; a consumer may not refer to a non-Scottish checked pattern as ‘plaid’ and the Scottish

counterpart as ‘tartan.’ This makes trademark too thin a protection for important ICH and

was a likely catalyst for the additional legislative protection for Harris Tweed.

One further issue surrounding a registration system is appointing a single individual

or entity to hold registration title. In contrast to much intellectual property regulation, the

Tartans Bill does allow an applicant to register a tartan with an unknown designer. Given the

age and unknown origin of many of these designs, this is a necessary allowance. However, in

an intellectual property context, what rights are conferred to registrees who are not the

original designer? As the register guidelines disclaim conferring any intellectual property

62

What’s in a Name? Geographical Indications Stir the Pot at WIPO, Knowledge Ecology Int’l,

http://keionline.org/node/1977. 63

Nair, L. & Kumar, R., GEOGRAPHICAL INDICATIONS, LexisNexis, New Dehli 8-9 (2005). 64

Dutfield, G. & Suthersanen, U., GLOBAL INT’L PROP. LAW, Cheltenham, UK 197 (2008). 65

Nair, L. & Kumar, R., GEOGRAPHICAL INDICATIONS, LexisNexis, New Dehli 205 (2005). 66

Nair, L. & Kumar, R., GEOGRAPHICAL INDICATIONS, LexisNexis, New Dehli 205 (2005).

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rights,67

much of the expectations and indirect rights associated with a tartan register are due

to piggy backing on already effective, accepted community regulation. Further, if two

individuals hold copyrights to tartans that are deemed too sufficiently similar for both to meet

the register eligibility requirements, the register operates on a first to file basis. Most

removal requests that are approved are related to a brand name trademark infringement.68

Obtaining clan approval to register a clan tartan is an interesting adaptation which

appears to grant a form community or collective right. While the right does not extend as far

as an enforceable intellectual property collective copyright, the structure presents the ability

to exercise a form of collective control over an official recognition to ICH.69

While older

tartans with an unknown designer will fall into the public domain, this official register is

offering a form of ancillary intellectual property rights in practice, whether foreseen or not.

Consumers, designers, and producers will recognize governmental authority, and the mere

listing may deter use of a tartan that is truly in the public domain, especially as the register

grants no intellectual property rights, potentially chilling creative contribution to the general

public good.

IV. Effects of Regulation and Propertisation – Exploratory Recommendations

This recent conversion from community to government regulation of ICH presents

many opportunities for data collection which could indicate the cultural social and economic

effects. One indicator of domestic social investment and return is the rate at which new

tartans are registered before and after government intervention. The rate of new applications

should be measured by both quality and quantity.

67

Guidance, THE SCOTTISH REGISTER OF TARTANS, supra note 4. 68

69

“The applicant must be the head or chief of the family or clan, or have the written authority of the head or

chief. Where there is no chief or head, the authority of the Clan Society will be acceptable to register a Clan

Society tartan.” Id.

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At most recent count, twelve fictional characters held registered tartans.70

However,

the effect of associated traditional Scottish Highland garb and culture with fictional

characters, corporate entities, and commercial ventures has not been fully investigated;

nonetheless, overcommercialisation of culture through branding and marketing presents a

danger of loss of cultural value to the community of origin.71

While measuring commericalisation, the confounding factor of the tatan’s previous

commercialization during the Victorian era must be considered. The previous

commercialisation into a tangible, salable good may mitigate the effect of more recent

governmental intervention into community–regulated ICH as the ICH may already be viewed

as a marketable product and less a culturally valuable piece of ICH.

Further, social effects of this intervention can be indicators of proper preservation of

ICH. For instance, whether modern social traditions, such as clan and celebratory utilization,

increased or decreased or changed in nature.

V. Alternative Courses for Cultural Preservation

If the government does choose to step in and intervene in community-regulated ICH,

typically it will operate for cultural preservation only, ie, not a fee charging registrar but in a

museum-like function. Charging an official fee to register ICH without conveying additional

rights appears to be an unusual governmental action, atypical of preservation movements that

have primarily indirect social and economic benefits.

As of this year, 158 member countries have signed onto the UNESCO Convention for

the Safeguarding of Intangible Cultural Heritage (“the ICH Convention”).72

In contrast to the

70

Suehle, R., Twelve Fictional Characters with Officially Registered Tartans,WIRED (21 Sept. 2012)

http://www.wired.com/geekmom/2012/09/registered-fictional-tartans/. 71

See generally Comaroff, J. & Comaroff, J., ETHNICITY, INC. (Chicago 2009). 72

Convention for the Safeguarding of Intangible Cultural Heritage, UNESCO (2003).

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World Heritage List, which focuses on tangible cultural locations,73

the ICH Convention

focuses on “Oral traditions and expressions, Performing arts, Knowledge and practises

concerning nature and the universe, Social practises, rituals and festive events, Traditional

craftsmanship.”74

Notably absent from the signatories are the United States and the United

Kingdom. While speculation regarding this absence may point to concerns about the integrity

of domestic intellectual property systems and sovereignty, a representative for the United

Kingdom simply stated that the United Kingdom had no intangible culture to protect.75

This

claim, while wholly erroneous, is not uncommon in developed countries and is one driver of

the acceptability of commercialization of ICH, diminishing its value. At minimum,

identification and recognition through joining this international treaty would help to protect

the diverse ICH within the United Kingdom.

On the legislation-heavy side, separate law regarding protection of ICH might be

implemented. However, this approach is often implemented with minority indigenous

populations, who were previously and currently marginalized in representation.76

While

entire bodies of law meant to protect minority cultures may not be relevant or efficient for

domestic ICH legislation, the argument that a majority population needs no legal protection

for ICH falls short in the face of globalization and rampant commercialization. Thus some

type of legal recognition of ICH and not only of intellectual property or of tangible cultural

heritage is necessary.

Should ongoing legislative action to register tartans discontinue due to funding or

administration change, a more informal partnership through the NRS could be formed to

73

The ICH Convention was partially motivated as a “corrective” to the World Heritage List exclusion of

valuable cultures without maintained cultural locations, which disproportionately affected southern hemisphere

countries. Kurin, R., Safeguarding Intangible Cultural Heritage in the 2003 UNESCO Convention: a Critical

Appraisal, 56 MUSEUM INT’L 66, 69 (2004). 74

ICH Convention, supra note 72. 75

Howell, D., The Intangible Cultural Heritage of Wales: A Need for Safeguarding?, 8 INT’L J. OF INTANGIBLE

HERITAGE 104, 106 (2013). 76

E.g., Aboriginal Cultural Heritage Reform, NSW ENVIRONMENT & HERITAGE, available at

http://www.environment.nsw.gov.au/achreform/ (last visited 14 Mar. 2014).

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support UK community organisations and to ensure continuity as well as the nature of ICH

without stifling evolution of the ICH. For instance, Welsh community organizations continue

to run the Eisteddfod Genedlaethol Cymru, a traditional festival celebrating Welsh language

and traditional culture as well as contemporary mmanifestations, consistent with the spirit

and community benefit that ICH offers.77

If the government register does continue, in order to fully accomplish the goals of the

Tartan Bill, specifically to fuel Scottish design and production, the Bill could be altered to

reflect the political rhetoric surrounding its passage.78

Limiting production and licensing to

Scottish businesses or mandating a certain amount of compulsory licencing to Scottish

businesses could create more of the economic and social benefit sought by the Bill.

Alternatively, a direct tie to Scotland in the description and function may better meet the

goals of the bill.

Lastly, the government might provide no registration function involvement at all and

leave any incentive or identification to the intellectual property system. While the

government sought the cooperation and input of existing community registers, no law

prohibits alternative registers should the community find the government structure

unsatisfying. However, the motivation and return for operating a duplicate register is greatly

diminished in the face of officially sanctioned registration. This discouragement of

community organization may impact the external benefits which already arose from

community regulation of ICH, such as web resources and community-run museums, as well

as unknown future events or organizations with social and economic benefits through

collective action.

77

Howell, supra note 75 at 107. 78

BBC News, supra note 37.

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VI. Conclusion

ICH offers many social and economic benefits to the originating culture as well as

diverse cultures globally,79

and domestic governments as well as international preservation

organisations which assess economically developed countries’ ICH as lower priority for

preservation and less dangerous to brand and market place these equally valuable

contributions to ICH at risk. While the risk may appear more pressing in developing

countries where scarce resources are allocated to infrastructure and other foundational

progress, developed countries becoming increasingly homogenously Westernized are

devoting few resources to protecting ICH or are utilizing those resources to commodify ICH.

Cultural heritage which contains tangible and intangible elements, like tartan, offers

the opportunity for community groups to leverage the existing knowledge of that heritage for

further social and cultural protection. While many Scottish people still carry on their

historical tartans, the commercial exploitation of the tartan threatens to lessen the value of

this ICH, thus removing the social and economic benefits that many international

organsations seek to preserve in developing countries. Further, the global benefit to

preserving unique ICH is incalculable and fundamentally enriches cultural diversity.

Further research may indicate whether additional legislative action to preserve

cultural heritage in a developed economy would offer sufficient protections to outweigh the

administrative implementation and enforcement burden of such lawmaking to ensure a

majority ethnic population in a Westernized country can preserve and maintain unique ICH.

However, heavy government involvement in the registration and oversight of ICH could

ossify the culture in its present state, contradicting the socially transmission and evolving

nature of ICH. A positive first step in the protection of UK cultural heritage would be to

ratify the ICH Convention rather than to adopt community cultural oversight into

79

Comaroff, supra note 71.

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governmental structures. This ratification would provide the international acknowledgement

and resources to best promote and protect UK ICH and allow participation in a global forum

as well as communicate a vote of governmental confidence to the unique cultural

communities within the country.